Attorney general must explain CPS disclosure failings

The new attorney general has been asked to attend parliament immediately and explain why police and prosecutors have failed to meet their disclosure obligations. Failures were identified in nearly half of criminal cases in a review by Crown Prosecution Service inspectors.

Shadow attorney general Shami Chakrabarti said the failure 'amounts to a national scandal in our justice system' and that Geoffrey Cox QC MP, who was appointed attorney general last week, 'must come to parliament with an explanation and remedy, without delay'.

Geoffrey Cox MP

The HM Crown Prosecution Service Inspectorate's report, published today, follows a two-year review of CPS areas across England and Wales.

Inspectors found that the police fully complied with their disclosure obligations in relation to unused material in 56.9% of cases. There was partial compliance in a further 36.7%.

Poor descriptions of items on the unused material schedules was the main cause of counting cases as failing the standard expected. A third of cases were marked down for reasons including sending wrong schedules, not dealing properly with witnesses' previous convictions, or not signing the required declaration regarding unused material.

Inspectors saw 'limited evidence' of prosecutors identifying police lack of compliance in reviews or other notes on files, or of the failings being fed back to police.

Prosecutors' compliance on initial disclosure 'was not much better', the report states.

Disclosure requirements were fully met in 58.4% of cases. Disclosure record sheets were properly completed, with actions and decisions fully noted, in 32.3% of cases. Continuing disclosure was better handled, with 64.8% of applicable cases fully meeting the expected standard.

Of the 429 cases that failed at the initial or continuing stages, eight featured a failure throughout the life of the proceedings to disclose material that undermined the prosecution case or assisted the defence. However, inspectors say these eight failures did not result in any miscarriages of justice.

Looking at case progression, inspectors found that cases did not progress as efficiently after the first hearing. Directions were complied with in a timely manner in only half of the applicable cases inspected. Over a quarter of decisions to discontinue were not put into effect in a timely manner.

Commenting on the report, chief inspector Kevin McGinty said it was encouraging that leadership, staff and public engagement were found to be CPS strengths. But he said the CPS 'needs to improve on the timely review of casework if it is to reduce delays and inefficiencies in the trial process'.

A CPS spokesperson said tackling the issues around casework and disclosure are top priorities.

'We are working with the police and partners across the criminal justice system to bring lasting improvements to the way we handle disclosure and a number of measures are already in place. By September our prosecutors will have completed mandatory disclosure training; local and national improvement plans are in place and we will continue to monitor progress closely,' the spokesperson added.

A high court judge admitted at a morning briefing that he give his order to one side, not on the merits of evidence but because it was the opponent barrister's turn to have a win even though all the evidence was against his client. In a patronising manner, he assured the defeated barrister that if she come to see him next time she was representing before him, he would see she got the win. Why bother with going to court if this is the manner of procedings?

Failure to disclose material relevant to a court procedure is classified as fraud under the Fraud Act and therefore a criminal offence. In a prosecution of police after the G20 protests in 2009, the police refused to give discovery of police witness statements. Three statements made on oath were obtained from the police insurers. It was clearly the case, that two of the witness statements contained untruths, why the police refused to disclose. Who is going to prosecute the two police officers for lying and who is going to prosecute the officer/s who decided not to disclose?

Mind you Simon,if as someone here says, the JAC are stafffed by a ‘team’ of Barristrs sifting applications.... now I wouldn’t use the words stooges, and also the Steve Bell cartoons where all the Judiciary and Police look uniformly the same wouldn’t spring to mind .....

Yes I would be intrigued to see how it could be updated but it would still need to be done by some very critical academic if we still have such for JAG was an exceptional writer. The have you read his book for example on the history of judicial review from 1920 that is well worth a read

Peter, l take your point. However there have been attempts to increase judicial diversity. There are now more women, members of ethnic minorities and solicitors on the Bench than when Griffiths was writing. I do think the Politics of the Judiciary could do with an update.

I read The Politics of the Judiciary over 30 years ago when I was a law student. Times have changed since then. For instance the Lord Chancellor no longer sits as a judge or has day to day oversight of the judiciary. It is a while since a former Law Officer was appointed to the Bench. They now occupy posts as diverse as Secretary - General to the Commonwealth ( Patricia Scotland) or Police and Crime Commissioner ( Vera Baird). Possibly time for an update.

"....The judiciary believe that everything the prosecution bring as police "gospel" must be 100% true ..."

You obviously haven't read The Politics of the Judiciary (JAG Griffiths),. Mandatory reading I should have thought. Particularly now so many Universities don't have the time or capacity to teach in depth foundations of Law anymore (by which I mean Jurisprudence and Legal History predominantly).

"....and it is now evident from so many comments post cases, that they can no longer be trusted .."

That again doesn't logically follow. Look for example at Lord Sedley, and there are others.

Denning's judgement when the Birmingham Six tried to sue the Government for abuse in prison is worth a read as well. As is the first major Appeal and the comments when the appeal was upheld) the police must have lied) .....

The judiciary believe that everything the prosecution bring as police "gospel" must be 100% true, and it is now evident from so many comments post cases, that they can no longer be trusted - which is compounding further disaster adding to the mistrust/disappointment regarding the police protecting the general public and upholding the UK law over any other

What's even more worrying is that the impartiality of the investigating police force is diminishing to such an extent that more and more police officers have the view that if you client has been arrested then he/she has to be guilty...other comments such as the complainant/witness has signed a statement with a declaration of truth must mean they're credible and would have no reason to fabricate their account (remember Plebgate? and Hillsboro?)
Where os this all going to end...the rule of law needs to be upheld in every (not some where a police officer thinks he/she should provide some undermining evidence) case or God help us...trial by a police officer's discretion.

Worrying Paul. One Solicitor I know in the Bristol area, regularly plays close to the wind, and on one occasion deliberately withheld a lead that would have possibly exonerated my client. Of course now we no longer have central funds payments, we could not adjourn and proof them (lead given at last moment).

All the local Counsel know the guy is they say 'challenging' to deal with (putting it mildly and diplomatically).

Interesting times.

And the comments about all the bench, the adviser Judges etc. being prosecutors is true. Not quite as bad as Leninst / Stalinist Russia just yet .....

When does non-disclosure and failure to disclose become a criminal offence? Under the Fraud Act 2006, Failure to disclose is a criminal offence.
We have police witness statements containing lies, that the police and IPCC refused to disclose, eventually we acquired the statements from the police insurers. These sworn witness statements were contained in the bundles which were read by three judges. The judge ordered that the police witness statements be omitted from the evidence. What is the point of law if not to be abided by?

When does non-disclosure and failure to disclose become a criminal offence?
We have police witness statements containing lies, that the police and IPCC refused to disclose, eventually we acquired the statements from the police insurers. These sworn witness statements were contained in the bundles which were read by three judges. The judge ordered that the police witness statements be omitted from the evidence. What is the point of law if NT to be abided by?

My poor CPS friends thought that these halcyon days could continue always. £50k+ p/a and holidays aplenty! The court legal advisers are on side, the magistrate are onside and even the judiciary are onside. It was like shooting fish in a barrel! Alas, those pesky defence lawyers underpaid, overworked and demotivated keep forcing you to do your job properly. I know they are 'only criminals' but surely they deserve a fair trial also.

Slightly harsh Mr Balchin, but only slightly. Ms Chakrabarti started out with a somewhat (traditional) leftish background, and won awards for her pro bono legal contributions (fullish disclosure: I was a contender for one pro bono award she won). Alas, she seemed to prove she is gamekeeper material when she (a) found the Labour Party not to be anti-Semitic; and (b) shortly after publication of her report accepted a Labour nominated peerage. Since then, anti-Semitism has continued to haunt the Labour Party, and Ms Chakrabarti has been criticised (as a Labour peer) for educating her children privately (Dulwich College, alma mater of PG Wodehouse and Nigel Farage).

She may be an astute political player, but she isn't (so far as I can tell from her public profile) any kind of thoughtful lawyer.

Errr a DPP Ex-DPP who doesn't understands Section 10 of the Prosecution of Offendors Act 1985 and wanted to reverse the burden of proof in all Sexual Offences cases (to put that mildly, but in reality all Criminal offences), that is reverse what hasn't been reversed already by effectively abolishing defence costs orders?

Not that she is authoritarian or anything or wanted to move on at the earliest possibility.

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